{"id":249039,"date":"1988-05-11T00:00:00","date_gmt":"1988-05-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jagan-nath-deceased-through-vs-chander-bhan-and-others-on-11-may-1988"},"modified":"2016-04-30T20:02:55","modified_gmt":"2016-04-30T14:32:55","slug":"jagan-nath-deceased-through-vs-chander-bhan-and-others-on-11-may-1988","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jagan-nath-deceased-through-vs-chander-bhan-and-others-on-11-may-1988","title":{"rendered":"Jagan Nath (Deceased) Through … vs Chander Bhan And Others on 11 May, 1988"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Jagan Nath (Deceased) Through … vs Chander Bhan And Others on 11 May, 1988<\/div>\n
Equivalent citations: 1988 AIR 1362, 1988 SCR Supl. (1) 325<\/div>\n
Author: S Mukharji<\/div>\n
Bench: Mukharji, Sabyasachi (J)<\/div>\n
           PETITIONER:\nJAGAN NATH (DECEASED) THROUGH L.Rs.\n\n\tVs.\n\nRESPONDENT:\nCHANDER BHAN AND OTHERS\n\nDATE OF JUDGMENT11\/05\/1988\n\nBENCH:\nMUKHARJI, SABYASACHI (J)\nBENCH:\nMUKHARJI, SABYASACHI (J)\nNATRAJAN, S. (J)\n\nCITATION:\n 1988 AIR 1362\t\t  1988 SCR  Supl. (1) 325\n 1988 SCC  (3)\t57\t  JT 1988 (2)\t441\n 1988 SCALE  (1)1079\n CITATOR INFO :\n RF\t    1990 SC1208\t (4)\n\n\nACT:\n     Delhi Rent\t Control Act<\/a>,  1958 Sections  14(1)(a)<\/a>, (b),\n(2)    c,.     15-Tenant-Eviction    of-on     ground\t  of\nsubletting\/Parting  with   possession-User  of\tPremises  by\nanother person is not parting with possession.\n\n\n\nHEADNOTE:\n     The respondent-landlord  had filed\t a petition  against\nthe appellant-tenant  under section 14(1)(a)<\/a> and 14(1)(b)<\/a> of\nthe Delhi  Rent\t Control  Act,\t1958  for  eviction  from  a\nresidential-cum-commercial  premises,  inter  alia,  on\t the\nground that  the appellant had sublet, assigned or otherwise\nparted with  possession of the premises to his sons who were\nrunning their  partnership business  in the  name of  Bindra\nTent House  with which the tenant had no concern. The tenant\ncontested  the\tpetition  on  the  ground  that\t he  was  in\nexclusive possession of the premises and was carrying on his\nbusiness therein  with the help of his sons who were members\nof his Joint Hindu Family.\n     In support\t of his plea that the tenant had parted with\npossession, the\t landlord had  produced documentary evidence\nwhich included copy of a statement made by the tenant before\nthe Income  Tax officer, which indicated that the tenant had\nsold his proprietary business to his sons.\n     The Additional  Rent Controller  held that there was no\nsubletting by  the tenant, but he had unlawfully parted with\nthe possession\tof the premises in favour of his sons and as\nsuch was liable to be evicted.\n     During the\t pendency of  the appeal  the tenant  sought\npermission under  order 6  Rule 17  of\tthe  Code  of  Civil\nProcedure to  amend his\t written statement to state that the\nproperty was  taken on\trent by\t M\/s Bindra  Tent House. The\nTribunal did not permit this belated amendment as this would\nhave  introduced  an  entirely\tnew  case.  On\tmerits,\t the\nTribunal dismissed  the appeal of the tenant. The High Court\ndid not find any substantial question of law in the tenant's\nsecond appeal and dismissed the same.\n     Allowing the appeal, it was,\n326\n^\n     HELD: (1)\tThe  only  ground  perhaps  upon  which\t the\nlandlord A was seeking eviction was parting with possession.\nIt is well-settled that parting with possession meant giving\npossession to  persons other  than those  to whom possession\nhad been  given by the lease and the parting with possession\nmust have  been by  the tenant.\t User by other person is not\nparting with  possession so  long as  the tenant retains the\nlegal possession  himself, or  in other words, there must be\nvesting of  possession by  the tenant  in another  person by\ndivesting himself  not only  of physical possession but also\nof the\tright of  possession. So  long as the tenant retains\nthe right  to possession there is no parting with possession\nin terms of clause (b) of section 14(1)<\/a> of the Act. [329G-H;\n330A]\n     (2) Even  though the  father had  retired from business\nand the\t sons had  been looking\t after the  business in\t the\nfacts of  this case,  it cannot\t be said that the father had\ndivested himself  of the  legal right  to be  in possession.\n[330B]\n     (3) In  the instant case, if the father was carrying on\nthe business  with his\tsons and  the  family  was  a  joint\nfamily, it  is difficult  to presume  that  the\t father\t had\nparted with  possession legally\t to attract  the mischief of\nsection 14(1)(b)<\/a> of the Act. [330D-E]\n     (4) In  these days\t of acute  shortage of accommodation\nboth for  living and  for vocation,  one  has  to  take\t the\nreality with  a pinch  of salt\tand the\t manner in which the\noriginal  tenant  has  conducted  himself  in  shifting\t his\ndefence would  not disentitle him to the benefit of the law.\n[330Gl\n     Subashini Mojumdar\t v. Krishna  Prasad Mahatoo,  A.I.R.\n1956 Assam  79; M\/s Modi Spinning and Weaving Mills Co. Ltd.\nv. M\/s\tLadha Ram  and\tCo<\/a>.,  [1977]  1\t SCR  728  and\tSmt.\nKrishnawati v. Shri Hans Rai<\/a>, [1974] 1 SCC 289, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1127 of
\n1985.\n<\/p>\n
     From the  Judgment and order dated 29.8.84 of the Delhi
\nHigh Court in S.A.O. No. 40 of 1984.\n<\/p>\n
     Rajinder  Sachhar\t and  Mrs.   Rani  Chhabra  for\t the
\n     Appellants.\n<\/p>\n
     A.K. Ganguli and E.M.S. Anam for the Respondents.
\n     The Judgement of the Court was delivered by
\n327<\/span>
\n     SABYASACHI MUKHARJI, J. This appeal by special leave is
\ndirected against  the judgement\t and order of the High Court
\nof Delhi  dated 29th  August, 1984.  One Jagan\tNath,  since
\ndeceased,  was\tthe  original  tenant  of  the\tpremises  in
\nquestion. He  died during  the pendency of this appeal here.
\nHis sons  have been  substituted. The  tenancy\tin  question
\nstarted on  1st\t January,  1962.  It  appears  that  on\t 7th
\nNovember, 1967\tnotice was  addressed to  Shri\tBaldev\tRaj,
\ndescribing him\tas sole proprietor of M\/s Bindra Tent House,
\nNew Delhi,  for eviction.  There was  an increase in rent in
\nJuly, 1970. The respondent herein filed the petition against
\nthe appellant  herein Jagan  Nath under section 14(1)(a)<\/a> and
\n14(1)(b)<\/a> of  the Delhi\tRent Control  Act, 1958 (hereinafter
\ncalled the  Act) for  eviction of  the\tappellant  from\t the
\npremises consisting of one room forming part of premises No.
\nN-80, Kirti  Nagar, New\t Delhi, as  the appellant herein had
\nnot paid  rent with  effect from  1st May,  1975  till\t30th
\nApril, 1977  at the  rate of Rs.75 per month despite service
\nof the\tdemand notice  dated 8th  January, 1976.  It was the
\nfurther case of the respondent herein that the appellant had
\nafter 9th  June, 1962  sublet, assigned\t or otherwise parted
\nwith possession\t of the\t premises to  Shri Baldev Raj Bindra
\nand Sat\t Pal Bindra  without the  consent in  writing of the
\nrespondent-landlord.  The   suit  was\tfiled\tbefore\t the
\nAdditional Rent\t Controller and\t the same  was contested  on
\nvarious grounds.  It was contended that the petition was not
\nmaintainable because  of  non-joinder  of  Shri\t Baldev\t Raj
\nBindra and  Sat Pal  Bindra. The  premises  in\tquestion  is
\nresidential-cum – commercial. It was stated that Shri Baldev
\nRaj Bindra  and Sat  Pal Bindra are the sons of the original
\nappellant, since  deceased. The said tenant was in exclusive
\npossession of  the premises and was carrying on his business
\ntherein with  which, it\t was stated,  Baldev Raj and Sat Pal
\nhad no\tconcern. They  are the\tsons of\t the  tenant,  since
\ndeceased, and  had constituted\ta Hindu Undivided Family. No
\ndemand notice  was ever\t served upon  the tenant. The tenant
\ntendered the  rent to  the landlord  by money  order for  an
\namount of  Rs.450 which he refused to accept. The Additional
\nRent Controller\t so far\t as the ground of nonpayment of rent
\nwas concerned  held that  there was  a compliance  with\t the
\norder passed  under section 15(1)<\/a> of the Act. The Additional
\nRent Controller\t gave the  tenant the  benefit under section
\n14(2)<\/a> of the Act. The petition of the landlord on the ground
\nof non-payment of rent was, therefore, dismissed.\n<\/p>\n
     The other\tground was the ground of eviction claimed by
\nthe landlord  for subletting, assignment or parting with the
\npossession of  the premises  in question  by the  tenant  hl
\nfavour of  his sons  Baldev Raj\t and  Sat  Pal\tBindra.\t The
\nlandlord in his deposition had stated that since
\n328<\/span>
\n1st July,  1971 Baldev\tRaj and\t Satpal were  running  their
\nbusiness  in   the  name   of  M\/s.  Bindra  Tent  House  in
\npartnership and\t they were  in possession of the premises in
\nquestion. The  tenant  had  no\tconcern\t with  the  business
\ncarried on  in the  demised  premises  and  the\t tenant\t had
\nretired. The tenant in his cross-examination had stated that
\nhe had\tsent partnership document and Form II to the Income-
\ntax Department.\t 13 The\t landlord had  denied the suggestion
\nthat the  said Jagan  Nath was in possession of the premises
\nand his\t sons had  been helping him from the very beginning.
\nThe landlord  had produced  on the record one statement made
\nby the\tappellant herein,  Jagan Nath  before the Income Tax
\nofficer, photostat  copy of which is Exhibit A.W. 3\/1 on the
\nrecord\twhich\tindicated  that\t  Jagan\t Nath  who  was\t the
\nproprietor of  the Bindra  Tent\t House\tsold  the  same\t for
\nRs.18,000 on 1.1.1970 to his sons Baldev Raj and Sat Pal and
\nhe got\tcash of Rs.8,000 and he gifted the other amount into
\ntwo equal  shares to his sons Baldev Raj and Sat Pal. In his
\nstatement, Jagan Nath had stated that Sat Pal and Baldev Raj
\nhad entered  into a partnership in the same name M\/s. Bindra
\nTent House  in the  same premises. This document was heavily
\nrelied upon  before  us\t by  Shri  Sachhar  in\taid  of\t his
\nsubmissions that the tenant had parted with possession.\n<\/p>\n
     There is another document Exhibit A.W-2\/1. According to
\nthis document  which is a photostat copy of the stamp vendor
\nregister, non-judicial papers for Rs.13, Rs.2 and Rs.20 were
\npurchased by Baldev Raj for partnership purposes in the name
\nof M\/s.\t Bindra Tent  House. Our attention was also drawn to
\nthe fact  that an application for electricity connection was
\nmade by Sat Pal Bindra in the name of M\/s. Bindra Tent House
\non 25th\t July, 1975 as the sole proprietor of the same. From
\nthese and  other documents,  it was contended that there was
\nparting of  possession and  as such the tenant was liable to
\nbe .  evicted. The  Additional Rent  Controller ordered\t the
\neviction under\tsection 14(1)(b)<\/a>  of the  Act. He  held that
\nthere was  no subletting  by the  tenant, Jagan\t Nath  since
\ndeceased but he had unlawfully parted with the possession of
\nthe demised  premises in  favour of  his sons  Sat  Pal\t and
\nBaldev Raj without the consent in writing of the landlord.\n<\/p>\n
     During the\t pendency of the appeal the tenant preferred
\nan application\tunder order  6 Rule  17 of the Code of Civil
\nProcedure seeking permission to amend his written statement.
\nThe appellant  contended that  the landlord  filed  eviction
\npetition  in  respect  of  the\tsaid  premises\tagainst\t the
\nappellant and  his two\tsons which was assigned to Shri A.P.
\nChaudhary, Additional  Rent  Controller.  Another  objection
\nraised\t  was  that  the  property  was\t taken\ton  rent  by
\nM\/s.Bindra Tent House
\n329<\/span>
\nand,  therefore,   the\tpetition   for\teviction   was\t not
\nmaintainable. The application had been contested in which it
\nhad been admitted that the earlier petition for eviction was
\nfiled but  according to\t the respondent\t it was not properly
\ninstituted and\tthe same  was withdrawn.  It was denied that
\nthe application\t was not  maintainable. The  Tribunal on  an
\nanalysis of  the matter\t came to the conclusion that belated
\namendment could not be permitted. It was emphasised that the
\ntenant had  admitted in\t the written statement that he was a
\ntenant\tin   the  property   in\t question.   He\t could\t not
\nsubsequently be allowed to wriggle out of this situation and
\nwithdraw the  admission. If  the amendment was allowed, they
\nwould take valuable right of the other side and altogether a
\nnew plea  would be  taken,  it\twas  held.  This  cannot  be
\npermitted. In this connection, the Rent Tribunal relied upon
\nthe observations  of  the  Assam  High\tCourt  in  Subashini
\nMajumdar and  another v.  Krishna Prasad  Mahatoo and  Ors.,
\nA.I.R. 1956  Assam 79.\tThe same view was reiterated by this
\nCourt in  M\/s. Modi  Spinning and Weaving Mills Co. Ltd. and
\nanother v.  M\/s. Ladha\tRam and\t Co<\/a>., [1977] l SCR 728 where
\nthe proposed  amendment\t introduced  an\t entirely  new\tcase
\nseeking to  displace the  other\t side  completely  from\t the
\nadmission made\tthen. It  was held  that such  an  amendment
\ncould not  be allowed.\tWe are\tof the opinion that the Rent
\nTribunal was  therefore right  in refusing  the amendment on
\nthe basis  of the  aforesaid principle.\t The Tribunal  on an
\nanalysis of  evidence and  facts came to the conclusion that
\nthere was  no merit  in the  appeal and dismissed the appeal
\nand affirmed the eviction order.\n<\/p>\n
     The High  Court on\t an analysis  of  the  evidence\t and
\nrelevant authorities  came to  the conclusion that there was
\nno substantial\tquestion of  law and  dismissed\t the  second
\nappeal. Hence this appeal.\n<\/p>\n
     The question  for consideration is whether the mischief
\ncontemplated under  section 14(1)(b)<\/a>  of the  Act  has\tbeen
\ncommitted as  the tenant  had sublet, assigned, or otherwise
\nparted with  the possession  of the  whole or  part  of\t the
\npremises without  obtaining the\t consent in  writing of\t the
\nlandlord. There\t is no\tdispute that there was no consent in
\nwriting of  the landlord  in this  case. There\tis  also  no
\nevidence that  there has  been any subletting or assignment.
\nThe only  ground perhaps upon which the landlord was seeking
\neviction was  parting with  possession. It  is\twell-settled
\nthat parting  with possession  meant  giving  possession  to
\npersons other  than those  to whom possession had been given
\nby the\tlease and the parting with possession must have been
\nby the\ttenant; user  by other\tperson is  not parting\twith
\npossession  so\t long  as   the\t tenant\t retains  the  legal
\npossession himself, or in other words there
\n330<\/span>
\nmust be\t vesting of  possession by  the\t tenant\t in  another
\nperson by  divesting himself not only of physical possession
\nbut also  of the  right to possession. So long as the tenant
\nretains the  right to  possession there\t is no\tparting with
\npossession in  terms of\t clause (b)  of section 14(1)<\/a> of the
\nAct. Even  though the  father had  retired from the business
\nand the\t sons had  been looking\t after the  business, in the
\nfacts of  this case,  it cannot\t be said that the father had
\ndivested himself  of the legal right to be in possession. It
\nthe father  has a  right to  displace the  possession of the
\noccupants, i.e., his sons, it cannot be said that the tenant
\nhad parted  with possession.  This Court in Smt. Krishnawati
\nv. Shri\t Hans Raj<\/a>,  [1974] 1 SCC 289 had occasion to discuss
\nthe same  aspect of the matter. There two persons lived in a
\nhouse as  husband and  wife and\t one of\t them who rented the
\npremises, allowed  the other  to carry on business in a part
\nof it.\tThe question  was whether it amounted to sub-letting
\nand attracted  the provisions  of sub-section (4) of section
\n14<\/a> of  the Delhi  Rent Control\tAct. This Court held that if
\ntwo persons live together in a house as husband and wife and
\none of\tthem who owns the house allows the other to carry on
\nbusiness in  a part  of it, it will be in the absence of any
\nother evidence,\t a rash inference to draw that the owner has
\nlet out\t that part  of the  premises. In  this case  if\t the
\nfather was  carrying on\t the business  with his sons and the
\nfamily was  a joint Hindu family, it is difficult to presume
\nthat the  father  had  parted  with  possession\t legally  to
\nattract the mischief of section 14(1)(b)<\/a> of the Act.\n<\/p>\n
     Shri Ganguly  appearing for the landlord contended that
\nthe con\t duct of  the tenant, Jagan Nath had been as sitting
\non the\tfence and  avoiding the\t issue. It is true that Shri
\nGanguly rightly\t pointed out  that Jagan Nath, the erstwhile
\ntenant had not been fair and frank. But this is no ground to
\ndisentitle him\tto the\tbenefit of the law if the facts have
\nbeen proved  that he  had not  parted with possession. After
\nall, it\t has to be borne in mind that this is a residential-
\ncum-commercial premises. Jagan Nath was carrying on business
\nin part\t of the\t building with\this two sons. Jagan Nath had
\ndied, therefore,  it will be just and proper to presume that
\nthey were  carrying on business, though perhaps the stand of
\nthe Jagan  Nath was  not always fair. In these days of acute
\nshortage of  accommodation both for living and for vocation,
\none has\t to take  the reality  with a  pinch of salt and the
\nmanner in  which Shri Jagan Nath has conducted himself would
\nnot disentitle\thim the\t benefit of  the law  in the present
\nclimate.\n<\/p>\n
     In the  view we have taken, this appeal must be allowed
\nand the\t judgment and  order of\t the High Court of Delhi and
\nthe Courts  below are  set  aside.  The\t eviction  order  is
\naccordingly set aside.\n<\/p>\n
331<\/span><\/p>\n
     It has, however, to be borne in mind that rent in these
\nareas has  increased enormously.  So  while  exercising\t our
\njurisdiction under  Article 136<\/a> of the Constitution, we will
\nenhance the  rent to  four times. We are told that the mesne
\nprofit at  present payable  was Rs.75  per month.  We direct
\nthat mesne  profit\/rent\t should\t be  Rs.300  per  month.  We
\nfurther direct\tthat this  will not  prejudice the rights of
\nthe respondent\therein to  file any proceedings for eviction
\non the\tground of bona fide need, if there is such a need or
\non any other ground available to the respondent for eviction
\nunder the  Act. We  give this direction in view of the facts
\nalleged in the affidavit of Shri Chander Bhan Mehta affirmed
\non ‘6th\t April, 1988.  About the  correctness or validity of
\nthe statements\tmade therein,  we had no occasion to examine
\nin this\t appeal. We  have also\ttaken into consideration the
\naffidavit of Shri Baldev Raj Bindra affirmed on the 2nd May,
\n1988 about the veracity of which also we express no opinion.\n<\/p>\n
     In the  facts of  this case, the appellants will pay to
\nthe respondent the costs of the appeal.\n<\/p>\n
R.S.S.\t\t\t\t       Appeal allowed.\n332<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Jagan Nath (Deceased) Through … vs Chander Bhan And Others on 11 May, 1988 Equivalent citations: 1988 AIR 1362, 1988 SCR Supl. (1) 325 Author: S Mukharji Bench: Mukharji, Sabyasachi (J) PETITIONER: JAGAN NATH (DECEASED) THROUGH L.Rs. Vs. RESPONDENT: CHANDER BHAN AND OTHERS DATE OF JUDGMENT11\/05\/1988 BENCH: MUKHARJI, SABYASACHI (J) BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-249039","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nJagan Nath (Deceased) Through ... vs Chander Bhan And Others on 11 May, 1988 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jagan-nath-deceased-through-vs-chander-bhan-and-others-on-11-may-1988\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jagan Nath (Deceased) Through ... vs Chander Bhan And Others on 11 May, 1988 - 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